Weir v. Brune, No. 43139

CourtUnited States State Supreme Court of Missouri
Writing for the CourtPER CURIAM
Citation364 Mo. 415,256 S.W.2d 810
Decision Date09 March 1953
Docket NumberNo. 2,No. 43139
PartiesWEIR et al. v. BRUNE et al

Page 810

256 S.W.2d 810
WEIR et al.
v.
BRUNE et al.
No. 43139.
Supreme Court of Missouri, Division No. 2.
March 9, 1953.
Rehearing Denied April 13, 1953.

J. Raymond Dyer and Alexander M. Goodman, St. Louis, for appellants.

J. E. Sigoloff and Charles S. Sigoloff, St. Louis, for respondents.

BARRETT, Commissioner.

This reassigned appeal is an action for damages on behalf of two minors. The petition is in three separave counts and seeks actual and punitive damages against the owners and lessors of a 'tenement' for personal injuries sustained when the children were bitten by a rat. The first count is based, primarily, upon the violation of

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an ordinance of the City of St. Louis, known as the 'rat ordinance.' 'Alternative' count two is based upon 'common law negligence,' the maintenance of a dangerous nuisance, 'a harborage' for rats. And 'alternative' count three is based on 'fraudulent breach of contract' in the rental of the premises to the children's mother and next of friend. The defendants filed a motion to dismiss all three counts of the petition upon the ground that 'said counts fail to state facts sufficient to constitute causes of action against defendants.' The judgment appealed from 'doth order that said motion be sustained as to Count One, and overruled as to Counts Two and Three of said petition.' The question briefed and argued is whether count one of the petition states a claim upon which relief can be granted, in other words whether that count states a cause of action. Hyde & Douglas 'The Civil Code Act of 1943,' Sec. 1, 2 Carr, Civil Procedure, p. 539. It is thus obvious that the first question to challenge attention is whether, counts two and three not having been disposed of, the appeal is premature and should therefore be dismissed.

It is urged by the appellant that there is a difference between 'case' and 'action' and, as illustrated by the appellants' original petition, the two counts embraced two causes of action which have been carried forward in the three counts of their amended petition. Therefore, it is urged, that the trial court 'did dispose of, not the whole 'case,' but of a 'distinct or auxiliary branch thereof' which is all that is necessary to make that disposition final and appealable.' It is urged that the plaintiffs have a right of election and that if this appeal is dismissed for lack of jurisdiction the appellants will be deprived of that right, while the appellant admits that Rule 3.29,...

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16 practice notes
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...evidence, the abandoned second count is not now appropriately before this court and may not be considered by us. Cf. Weir v. Brune, Mo., 256 S.W.2d 810, 811(2); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(3); Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826(4); State ex rel. Fe......
  • Fulton v. City of Lockwood, No. 43788
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1954
    ...in evidence upon the trial. It is not before us. Kelso v. W. A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 530; Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811. Moreover, the 'Supplemental Transcript on Appeal' fails to show a compliance with the provisions of Sec. 512.110, subd. 3, and is no......
  • Pizzo v. Pizzo, No. 44762
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1956
    ...the court considered an order for a separate trial to be an order for a separate final judgment. The opinion in Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811, lends credence to this view. And see Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, and Harper v. St. Joseph Lead Co., 361 Mo. 12......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...were disposed of; and Count I remained undisposed of until McDonnell dismissed it. Sec. 511.020; Sec. 512.020; Weir v. Brune, Mo.Sup., 256 S.W.2d 810; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614 and cases cited. Th......
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16 cases
  • Grapette Co. v. Grapette Bottling Co., No. 7383
    • United States
    • Court of Appeal of Missouri (US)
    • January 11, 1956
    ...evidence, the abandoned second count is not now appropriately before this court and may not be considered by us. Cf. Weir v. Brune, Mo., 256 S.W.2d 810, 811(2); Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, 597(3); Von Eime v. Fuchs, 320 Mo. 746, 8 S.W.2d 824, 826(4); State ex rel. Fe......
  • Fulton v. City of Lockwood, No. 43788
    • United States
    • United States State Supreme Court of Missouri
    • April 12, 1954
    ...in evidence upon the trial. It is not before us. Kelso v. W. A. Ross Const. Co., 337 Mo. 202, 85 S.W.2d 527, 530; Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811. Moreover, the 'Supplemental Transcript on Appeal' fails to show a compliance with the provisions of Sec. 512.110, subd. 3, and is no......
  • Pizzo v. Pizzo, No. 44762
    • United States
    • United States State Supreme Court of Missouri
    • November 12, 1956
    ...the court considered an order for a separate trial to be an order for a separate final judgment. The opinion in Weir v. Brune, Mo.Sup., 256 S.W.2d 810, 811, lends credence to this view. And see Lightfoot v. Jennings, 363 Mo. 878, 254 S.W.2d 596, and Harper v. St. Joseph Lead Co., 361 Mo. 12......
  • McDonnell Aircraft Corp. v. Hartman-Hanks-Walsh Painting Co., HARTMAN-HANKS-WALSH
    • United States
    • Missouri Supreme Court
    • April 13, 1959
    ...were disposed of; and Count I remained undisposed of until McDonnell dismissed it. Sec. 511.020; Sec. 512.020; Weir v. Brune, Mo.Sup., 256 S.W.2d 810; White v. Sievers, 359 Mo. 145, 221 S.W.2d 118; Magee v. Mercantile Commerce Bank & Trust Co., 339 Mo. 559, 98 S.W.2d 614 and cases cited. Th......
  • Request a trial to view additional results

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